Opinion
# 2020-041-504 Claim No. 126525 Claim No. 126802
05-05-2020
CONNOR JOSEPH BARNEY, as Administrator of the Estate of JAMES EZRA BARNEY, II, Deceased, and KAYLA E. BEDORE Individually and as Administratrix of the Estate of KIMBERLY A. BARNEY and SCOTT M. COLBY, Individually and as Parent and Natural Guardian of E.C. v. THE STATE OF NEW YORK
SMITH, SOVIK, KENDRICK & SUGNET, PC By: Edward J. Smith, III, Esq. SUGARMAN LAW FIRM, LLP By: Esam A. Elbadawi, Esq. HON. LETITIA JAMES New York State Attorney General By: Glenn C. King, Esq. Assistant Attorney General
Synopsis
Two consolidated claims are dismissed after a liability trial arising from a traffic accident in which an adult driver and an adult passenger were killed, and infant passenger (all occupants of the same vehicle) was injured, when the claimant's car was struck head-on by a truck driven by Trevor Sisto (Sisto) which had crossed over into the claimant's lane of traffic while traveling at an excessive rate of speed. Sisto was attempting to evade pursuing New York State Police (State Police) vehicles. The claimants failed to prove by a preponderance of the evidence that the State Police violated Vehicle and Traffic Law § 1104 (e) by acting in reckless disregard of the safety of others in initiating and continuing the pursuit of Sisto or that the State Police negligently or proximately caused the accident by allegedly violating State Police guidelines in failing to notify a supervisor and/or to obtain supervisory authorization in response to an inter-agency request for assistance in the pursuit of Sisto.
Case information
| UID: | 2020-041-504 |
| Claimant(s): | CONNOR JOSEPH BARNEY, as Administrator of the Estate of JAMES EZRA BARNEY, II, Deceased, and KAYLA E. BEDORE Individually and as Administratrix of the Estate of KIMBERLY A. BARNEY and SCOTT M. COLBY, Individually and as Parent and Natural Guardian of E.C. |
| Claimant short name: | BARNEY |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The caption is amended to state the proper defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 126525, 126802 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | SMITH, SOVIK, KENDRICK & SUGNET, PC By: Edward J. Smith, III, Esq. SUGARMAN LAW FIRM, LLP By: Esam A. Elbadawi, Esq. |
| Defendant's attorney: | HON. LETITIA JAMES New York State Attorney General By: Glenn C. King, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | May 5, 2020 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Two separate claims, arising from the same incident, were filed in 2015 as a consequence of a terrible and tragic two-vehicle accident in Ray Brook, New York on July 24, 2014 that took the lives of two adults, James Barney and Kimberly Barney, and seriously injured a minor child, E.C., all occupants of the same vehicle. James Barney was the driver of one vehicle and Trevor Sisto was the driver of the other vehicle.
The first claim (the "Bedore" claim, Claim No. 126525) was filed July 31, 2015 by representatives of Kimberly Barney and E.C. The second claim (the "Barney" claim, Claim No. 126802) was filed September 28, 2015 by a representative of James Barney. The two claims, by stipulation of the parties and by Order of this Court dated January 4, 2018, were consolidated for discovery and trial. The consolidated claims, bifurcated for liability alone, were tried July 15, 16 and 17, 2019.
The events culminating in the two-vehicle head-on collision on Route 86 in Ray Brook at 1:46 p.m. on July 24, 2014 began the previous evening. At about 10:00 p.m. on the previous night, Trevor Sisto stole his mother's black Ford F-150 truck.
Sisto did not sleep throughout the evening of July 23, 2014 and into the day of July 24, 2014. During the early morning hours of July 24, 2014, Sisto smoked marijuana and drank two pints of vodka over a four-hour period. Sisto, on July 24, 2014, was 20 years old, stood 5'7" tall and weighed approximately 144 pounds.
On the morning of July 24, 2014, Sisto drove a 16 year old companion (Karisa) and two children (ages 11 and 13) of a friend (Sara) to Tupper Lake to purchase drugs. He followed a vehicle occupied by Sara and Sara's boyfriend. Sisto, frustrated by Sara's lengthy absence in procuring the drugs, left Tupper Lake with Karisa and Sara's two young daughters and drove to Saranac Lake, hoping to obtain money from a friend for gas.
While in Saranac Lake, Sisto had a minor fender bender with another vehicle and drove away without stopping. To "calm" themselves, Sisto and Karisa "took a couple of hits of marijuana." The Sisto group of four then drove to Lake Placid to stop at a place of former employment of Sisto. The events leading to the head-on collision in Ray Brook began in the Village of Lake Placid at approximately 1:36 p.m. on July 24, 2014.
Sisto first caught the attention of a Lake Placid employee when he drove the wrong way down a one-way alley behind the Lake Placid Police Department (LPPD). He refused the employee's call to stop and made his way to a no-outlet commercial establishment's parking area. There, he refused to comply with the command of a Lake Placid traffic enforcement agent to stop, intentionally backed his truck into the agent's golf-cart like vehicle, striking another uninvolved parked vehicle in the process, and fled. Sisto began speeding and driving dangerously on Lake Placid's Main Street, passing vehicles by crossing over into the oncoming traffic travel lane and, at times, driving on the sidewalks of Main Street, seeking to evade Lake Placid authorities, all while transporting his three young passengers.
The unfolding events in Lake Placid were made known to State Police Communications Specialist Francis Strack, situated several miles west of Lake Placid in the State Police barracks in Ray Brook. Mr. Strack was so informed by a telephone call placed to him at 1:40 p.m. by LPPD dispatcher Stacey Tempestilli, who provided Strack information that was being relayed to her by involved Lake Placid personnel.
Sisto eventually made his way out of Lake Placid, first stopping in the parking lot of a local McDonald's to discharge his three passengers. Sisto then began traveling on Wesvalley Road where, at the intersection of Cummings Road and Wesvalley Road, he encountered Lake Placid Police Chief William Moore, who was awaiting Sisto's possible arrival. Chief Moore had stationed himself at the intersection after hearing LPPD radio transmissions describing Sisto's vehicle, routes of travel and driving behavior.
When Chief Moore first spotted Sisto approaching, the Chief observed that there were no vehicles pursuing Sisto. Sisto, nevertheless, was speeding and crossing the center line into the opposing travel lane. Sisto nearly struck Chief Moore's vehicle, which was straddling the shoulder of Sisto's opposing lane of travel.
Chief Moore began pursing Sisto, first on Wesvalley Road, then turning right on Mill Pond Drive, and then turning right onto Old Military Road (also known as Route 35), the road leading to Route 86. The two vehicles were separated by such a distance that Chief Moore was only once able, after Sisto drove past him, to make visual contact with the fleeing Sisto, at the crest of a hill on Old Military Road. Chief Moore had navigated his way through clues provided by pointing passersby. After the sighting on Old Military Road, Chief Moore never again viewed the Sisto vehicle before he arrived at the crash site in Ray Brook.
Trooper Eric Mendelsohn was awaiting Sisto at the "T" intersection of Old Military Road and Route 86. Trooper Mendelsohn, having heard radio communications about developing events while driving in his State Police vehicle, had turned his vehicle sideways at the intersection in an effort to slow or stop Sisto. As with Chief Moore, when Trooper Mendelsohn first observed Sisto on Old Military Road approaching him, no observable vehicles were pursuing Sisto, yet again, Sisto was speeding, crossing the double yellow line and entering into the oncoming travel lane of Old Military Road. Sisto avoided Trooper Mendelsohn's sideways vehicle by driving behind the vehicle, and turned left (without stopping at the "T" intersection) onto Route 86 West, the road to Ray Brook.
Almost immediately after turning left onto Route 86 West, Sisto encountered Trooper Eric LaValley, who had parked his marked State Police vehicle to the side of Route 86 West, facing west, awaiting Sisto's possible arrival (which never would have happened had Sisto turned right at the intersection of Old Military Road and Route 86 to travel back toward Lake Placid on Route 86 East).
Upon sighting Sisto, Trooper LaValley pulled his State Police vehicle, with its lights and sirens activated, onto Route 86 West in front of Sisto and intentionally traveled slowly, 20 to 30 MPH, in an effort to block or impede Sisto and persuade him to slow or end his flight. Sisto sped by Trooper LaValley and proceeded west on Route 86 toward Ray Brook. At this point, Trooper LaValley initiated State Police pursuit of Sisto, contemporaneously notifying the State Police barracks in Ray Brook via radio communications that he had done so. In so doing, Trooper LaValley became the lead State Police pursuit vehicle of Sisto. Trooper Mendelsohn, having turned his vehicle around after being bypassed by Sisto at the intersection of Old Military Road and Route 86, fell in behind Trooper LaValley on Route 86 West, in second pursuit position.
As Sisto traveled west on Route 86 toward Ray Brook, he increased his speed and passed other westbound motorists, often crossing over the center line into the eastbound lane of Route 86 traffic to pass fellow westbound travelers. At one point, Sisto struck the rear of a westbound vehicle (Hunt vehicle) and continued on without pause.
Trooper James D'Ambro, having heard about the evolving situation while in the State Police Ray Brook barracks, left the barracks and began traveling east on Route 86 toward Lake Placid. He pulled his marked State Police vehicle to the side of the eastbound travel lane, facing east, anticipating the possible oncoming approach of Sisto. As Sisto approached Trooper D'Ambro's stationary vehicle, Sisto aimed his truck at the Trooper's vehicle, requiring Trooper D'Ambro to put his vehicle in a roadside ditch to avoid being struck. Trooper D'Ambro, after being passed by Sisto and by pursuing Troopers LaValley and Mendelsohn, turned his vehicle around to become the third State Police pursuit vehicle, albeit at a considerable distance behind the other three vehicles.
Sisto, as he entered the Hamlet of Ray Brook, sought to pass additional westbound vehicles by crossing into the eastbound travel lane of Route 86, but he found more vehicles in the westbound lane to pass than he had anticipated. Now seeing the oncoming Barney vehicle traveling east, Sisto went even further left (south side of Route 86) in an attempt to enter, in the wrong direction, the shoulder of the eastbound lane of travel. The Barney vehicle reacted to seeing the Sisto truck by moving to its right (also toward the eastbound lane shoulder, south of Route 86). Sisto, seeing this, then turned his vehicle to the right, back into the eastbound travel lane, striking the Barney vehicle head-on, "driver to driver."
The movements of the two involved vehicles, immediately prior to the crash, were described by Sisto himself at a deposition (Exhibit 26, p 110, lines 4-15), and were confirmed by Trooper LaValley, describing his observations of the crash in Exhibit 18, the transcript of his internal non-custodial State Police interrogation (Exhibit 18, p 12, lines 26-33). At trial, Trooper LaValley estimated that he was trailing the Sisto vehicle by between 200 and 300 yards at the time of the crash.
The collision took place in the eastbound travel lane of Route 86, the proper lane of travel for the Barney vehicle. The crash took place immediately west of a Curtis Lumber retail store situated on Route 86, at a location approximately 150 yards short of (east of) the State Police Ray Brook barracks situated on Route 86.
James Barney and Kimberly Barney were killed in the crash, and child E.C. was seriously injured. Sisto suffered no major injuries.
DISCUSSION
Trooper D'Ambro had been present in the communications room in the Ray Brook barracks and overheard Francis Strack's phone conversation with LPPD dispatcher Tempestilli about Sisto's dangerous and erratic driving in Lake Placid. Trooper D'Ambro asked Trooper Todd Claremont to cover his post in the communications room and left the barracks. Trooper D'Ambro, prior to leaving, neither notified a supervisor nor sought supervisory permission to leave the barracks. He then drove east on Route 86 and stopped his vehicle to await Sisto's possible approach.
Trooper Mendelsohn was in his State Police vehicle traveling east on Route 86, intending to retrieve a forgotten item from his home, when he heard radio communications about events in Lake Placid, that LPPD was pursuing the described suspect vehicle and that the suspect vehicle had struck the vehicle of a Lake Placid traffic agent. As he approached the intersection of Old Military Road and Route 86, Trooper Mendelsohn heard radio communication that the fleeing black truck was traveling toward that very intersection.
The Trooper turned right onto Old Military Road and "almost simultaneous" with his turn, observed the Sisto vehicle traveling at a high rate of speed, and straddling the double yellow center line as it approached him. Trooper Mendelsohn observed no vehicles in pursuit of Sisto. After unsuccessfully trying to block the intersection with his vehicle, Trooper Mendelsohn turned his vehicle around in an attempt to pursue Sisto on Route 86 West, only to soon find Trooper LaValley immediately in front of him, as Trooper LaValley had just initiated his pursuit of Sisto. Prior to taking his actions, Trooper Mendelsohn had not made any supervisory contact.
Although Trooper LaValley testified, apparently in error, to first hearing of the Sisto/LPPD involvement while he was in the Ray Brook barracks, other trial evidence suggests that he received that information at 13:40:59 (see Exhibit 7) while in his patrol car (car 3B12), a circumstance to which his passenger, Trooper trainee Kyle Conlon, testified. Exhibit 7 is the State police transcript of time-logged radio and phone communications by and between LPPD and State Police and of internal State Police communications, expressed in military time, during the relevant time periods of July 24, 2014.
After hearing the radio communications, which informed Trooper LaValley that LPPD was pursuing a black Ford F-150 truck and that the vehicle was "traveling at a high rate of speed . . . taking evasive action, driving on the sidewalk trying to avoid police," Trooper LaValley first stopped in the Curtis Lumber parking lot on Route 86 to monitor radio communications and to gather additional information.
Trooper LaValley, now armed with additional information left Curtis Lumber and drove east on Route 86, and, just short of the Old Military Road intersection, turned his vehicle around and pulled to the side of Route 86, facing west. His lights and sirens were active. Sisto soon approached. Trooper LaValley, after failing to impede Sisto by driving slowly on Route 86 West, initiated pursuit as the lead State Police pursuit vehicle. He immediately notified Ray Brook barracks that he had engaged in pursuit (see Exhibit 7 at 13:44:34). At the time Trooper LaValley notified Ray Brook of his pursuit, Sergeant Mark Fenton, in Tupper Lake, was already in communication with the Ray Brook barracks, on the phone with Trooper Claremont, who was receiving and relaying information about the events through Francis Strack, and conveying that information to Sgt. Fenton.
Trooper LaValley followed Sisto on Route 86 West toward Ray Brook. Each vehicle reached a maximum speed of approximately 96 MPH, a speed reached during certain long, straight stretches of Route 86 governed by a 55 MPH speed limit. Each vehicle passed several similarly westbound motorists after entering the eastbound travel lane to do so before returning to the westbound travel lane, on the way to Ray Brook.
As the vehicles approached the small commercial area of Ray Brook, governed by a 45 MPH speed limit, Trooper LaValley slowed his vehicle, and the distance between the Sisto vehicle and the Trooper's vehicle lengthened considerably. That Trooper LaValley slowed his pursuit speed of Sisto as the vehicles entered the small commercial area of Ray Brook was established by several aspects of the trial record:
1. Trooper trainee Conlon, Trooper LaValley's passenger during these events, credibly testified, "I do recall him [LaValley] severely backing away from the offending vehicle that we were in pursuit of at one time, but we did not terminate the pursuit, no" (Trial Transcript, hereafter "TT", p 495, lines 18-20);
2. Trooper Mendelsohn, immediately behind Trooper LaValley, credibly testified, "I don't remember him hitting the brakes, but he was, you know, basically letting off the gas . . . I remember thinking, you know, we're going to lose him [Sisto], because I could - - I could start to see the Sisto vehicle now. There was more distance between Trooper LaValley's Tahoe and the black truck that I could see him" (TT, p 566, lines 1-8);
3. Trooper Mendelsohn also testified, "I saw the distance increasing between Trooper LaValley's Tahoe and the truck and my - - my first thought was we're going to lose him, and then after that thinking, oh, Eric's slowing down . . . I didn't know it was Eric at the time. He's slowing down, because we're entering a slower speed zone" (TT, p 568, lines 3-9);
4. Trooper Mendelsohn further testified, "Well, we were still pursuing him. We just weren't pursuing him at the speed at which we were prior to entering the speed zone" (TT, p 571, lines 13-15);
5. The transcript of Trooper Mendelsohn's internal non-custodial State Police interrogation on April 27, 2015 (Exhibit 19) reads, "Oh we were definitely falling back. Once we hit that 35 [sic] mile an hour zone and reduced speed his distance just kept opening upon us" (Exhibit 19, p 11, lines 33-34);
Trial Exhibit 19 also contains, somewhat confusingly, an EBT exhibit marked "Plaintiff's Exhibit 18," dated "12/28/17." It is a transcript of the internal non-custodial State Police interrogation of Trooper LaValley on April 27, 2015, a document itself independently marked and admitted at trial as Trial Exhibit 18.
6. During the pre-trial deposition of Trooper Mendelsohn of December 28, 2017 (Exhibit 23), in response to a question about the vehicles entering the 45 MPH zone, the Trooper answers, "Yeah - - really I would give extra credit to Trooper LaValley because I noticed we were slowing, much like prior to the turn, we were still in the straightaway when I noticed we were slowing and I remember thinking well, we're slowing way down here" (Exhibit 23, p 69, lines 14-18); and,
7. Exhibit 30 is a DVD containing several files. One video file in that exhibit, entitled "CURTIS LUMBER FOOTAGE (trimmed)", is a video recording (without sound) created by a camera mounted on the Curtis Lumber store, facing east, which captures vehicle traffic traveling west on Route 86 in the seconds before the crash. The video captures the involved vehicles mere yards before, a second or two before, the crash of the Sisto and Barney vehicles. The crash itself takes place off camera. The black Ford F-150 Sisto truck first enters the frame at the 18 second mark on the video. The lead State Police pursuit vehicle of Trooper LaValley first enters the frame at the 26 second mark on the video, a full 8 seconds after Sisto. Trooper LaValley's vehicle is clearly far behind the Sisto vehicle - - no vehicles are between the two. The video also reveals that the Sisto vehicle is moving demonstrably and substantially faster than the LaValley vehicle. The Sisto vehicle is moving so fast that after it passes a roadside "BBQ" sign, the sign is left swinging in the truck's wake. The video then shows the trailing State Police vehicles of Trooper LaValley, Trooper Mendelsohn and Trooper D'Ambro.
The entire State Police pursuit of Sisto, as will subsequently be detailed, lasted a total of 81 seconds and covered approximately 2 miles.
Claimants allege that the defendant acted in violation of §1104 of the Vehicle and Traffic Law, breaching the standard of care the statute articulates to cover drivers of authorized emergency vehicles engaged in emergency operation. In so doing, claimants allege defendant was reckless and that defendant's recklessness proximately caused the deaths of and injuries to the occupants of the Barney vehicle.
The defendant's position is that no defendant conduct violated the standard of care set forth in Vehicle and Traffic Law § 1104, and further, that no defendant conduct proximately caused the deaths of or injuries to the occupants of the Barney vehicle.
Claimants additionally allege that several of the involved troopers violated internal State Police guidelines. The guidelines allegedly violated primarily concern providing notification to a supervisor and/or obtaining supervisory permission to engage in vehicle pursuit, particularly as it related to claimants' position that the three pursuing troopers, when informed of unfolding circumstances in Lake Placid by LPPD, had, in undertaking their initial responses, engaged in vehicle pursuit in response to an inter-agency request to assist in LPPD's pursuit of Sisto. Claimants allege that in so doing, the pursuing troopers violated State Police guidelines and thereby acted negligently, proximately causing the deaths of and injuries to the occupants of the Barney vehicle.
The defendant's posture is that nothing the three pursuing troopers did prior to engaging in their actual pursuit of Sisto was anything other than an appropriate response to information being provided by LPPD to the State Police, and that the sharing of that information was not a request of LPPD to assist in its pursuit of Sisto. Accordingly, defendant maintains the troopers were neither obligated to notify a supervisor nor obligated to obtain supervisory permission simply to monitor unfolding events.
Moreover, defendant points out that when Trooper LaValley did initiate actual State Police pursuit of Sisto, he immediately informed the State Police Ray Brook barracks communications center, and by that point, and during the entire pursuit, a supervisor, Sgt. Fenton, was monitoring the pursuit and seeking relevant and important information. Finally, defendant asserts, irrespective of whether the pursuing troopers violated State Police guidelines in undertaking their initial movements and actions that day, that any such violations were not the proximate cause of the day's tragic outcome.
TIMELINE
The involvement of the State Police in the events of July 24, 2014, from the time LPPD dispatcher Stacey Tempestilli first phoned State Police Communications Specialist Francis Strack to advise the State Police that a black Ford F-150 truck was engaged in high-speed, erratic and dangerous driving ("traveling up the sidewalk in Lake Placid") until the moment Trevor Sisto crashed into the Barney vehicle on Route 86 in Ray Brook, lasted a total of approximately six minutes, from 1:40:00 p.m. to 1:45:55 p.m.
This time frame may be calculated by reference to Exhibit 7 and to Exhibit 12. Exhibit 7 is the aforementioned transcript of time-logged radio and phone communications by and between LPPD and State Police and of internal State Police communications, as events unfolded on July 24, 2014. Exhibit 12 is a document prepared for trial which is a transcript of these same sets of communication, color-coded by agency, with lighter blue denoting LPPD communications and darker blue denoting State Police communications. Each exhibit utilizes military time and each document, for reasons never explained, sets forth two different times of day (to no significance or consequence) for each entry, creating a time discrepancy of exactly 13 minutes, 30 seconds in recording the time of day for each entry. This discrepancy had no bearing on the consideration of the claims.
The Court found Exhibit 7 to be far more clear than the multi-colored Exhibit 12, its design much easier to follow, even as each exhibit sets forth the same series of communications. The two transcripts, though not perfectly identical, are nearly so. Exhibit 7 is a State Police prepared document with identified provenance. Exhibit 12, beyond being more difficult to follow, is a document prepared for trial of unknown origin and of unknown authorship. For these reasons, the Court will hereafter reference Exhibit 7 exclusively. Further, although not critical to evaluation of the claims, the Court has adopted and utilized the first listed time for each entry of Exhibit 7 as the accurate time of day, expressed in military time, an assessment and conclusion supported by other trial evidence.
Finally, Exhibit 7, beyond establishing what information was conveyed to what parties at what point in time, accurately establishes an internally-synchronized measure of intervals of time. That is to say, Exhibit 7 accurately establishes the passage of time between the events of the day. In doing so, Exhibit 7 eliminates the imprecision of trying to establish accurate intervals of time by comparing non-synchronized time of day references from various sources mentioned in the trial record.
The State Police's entire active interaction with Trevor Sisto lasted less than two minutes, starting when Sisto passed behind Trooper Mendelsohn's vehicle positioned sideways at the intersection of Old Military Road and Route 86, and ending at the scene of the crash.
In fact, the State Police actual vehicle pursuit of Sisto lasted a total of 81 seconds, from 13:44:34 ("3B12 Trooper LaValley now in pursuit of the vehicle"), when Sisto passed Trooper LaValley on Route 86 West, until 13:45:55, the time that the crash ("Roll-over") is reported (see Exhibit 7).
VEHICLE AND TRAFFIC LAW SECTION 1104One of the two major prongs by which claimants seek to establish defendant liability is their contention that the State Police conduct violated the duty of care established for the driver of an authorized emergency vehicle involved in an emergency operation, set forth under Section 1104 of the Vehicle and Traffic Law.
Vehicle and Traffic Law Section 1104 (e) reads:
"The foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others."
The Courts have made clear that the breach of this duty of care, commonly referred to as the "reckless disregard" standard, is set at an exceedingly high threshold, so established for self-evident public policy reasons.
The Court of Appeals, speaking in Saarinen v Kerr (84 NY2d 494, 497-502 [1994]), established the standard of care required under Vehicle and Traffic Law Section 1104:
"Drivers of emergency vehicles have a primary obligation to respond quickly to preserve life and property and to enforce the criminal laws. Consequently, in recognition of these drivers' special needs, the Legislature enacted Vehicle and Traffic Law § 1104, which qualifiedly exempts them from certain traffic laws when they are "involved in an emergency operation." At issue in this appeal are the meaning and effect of the statute's provisions for civil liability in the event of an accident (Vehicle and Traffic Law § 1104[e]). Consistent with its language and purpose, we hold that Vehicle and Traffic Law § 1104(e) precludes the imposition of liability for otherwise privileged conduct except where the conduct rises to the level of recklessness.
. . . .
Faced squarely with this question of statutory interpretation for the first time, we hold that a police officer's conduct in pursuing a suspected lawbreaker may not form the basis of civil liability to an injured bystander unless the officer acted in reckless disregard for the safety of others. This standard demands more than a showing of a lack of "due care under the circumstances" - - the showing typically associated with ordinary negligence claims. It requires evidence that "the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probably that harm would follow" and has done so with conscious indifference to the outcome (Prosser and Keeton, Torts §34, at 215 [5th ed]; see, Restatement [Second] of Torts § 500).
The use of this higher standard is compelled by the plain language of Vehicle and Traffic Law § 1104(e). Indeed, the Legislature's specific reference to "the consequences of [the driver's] reckless disregard for the safety of others" (emphasis supplied) would be unnecessary and, in fact, inexplicable if the conventional criterion for negligence - - reasonable care under the circumstances - - were the intended standard.
Notably, the common law has long recognized that an emergency situation which leaves little or no time for reflection "itself may be a significant circumstance which . . . should enter into the determination of the reasonableness of the choice of action pursued" (Ferrer v Harris, 55 NY2d 285, 292). Thus Vehicle and Traffic Law § 1104(e)'s mention of "the duty to drive with due regard for the safety of all persons" would have sufficed if the more 'flexible' reasonable person standard for conduct in the face of an emergency were all that was contemplated (see, id., at 292). The fact that the Legislature went beyond that formulation and invoked the "reckless disregard" terminology demonstrates beyond question that something more exacting than that traditional inquiry was intended. Accordingly, the only way the to apply the statute is to read its general admonition to exercise "due care" in light of its more specific reference to "recklessness."
Such an approach also comports with the purposes of Vehicle and Traffic Law § 1104. The statute represents a recognition that the duties of police officers and other emergency personnel often bring them into conflict with the rules and laws that are intended to regulate citizens' daily conduct and that, consequently, they should be afforded a qualified privilege to disregard those laws where necessary to carry out their important responsibilities. Where the laws in question involve the regulation of vehicular traffic, the exercise of this privilege will inevitably increase the risk of harm to innocent motorists and pedestrians. Indeed, emergency personnel must routinely make conscious choices that will necessarily escalate the over-all risk to the public at large in the service of an immediate, specific law enforcement or public safety goal." (Emphasis Added)
Harris v City of Schenectady Police Dept. (124 AD3d 1124, 1125 [3d Dept 2015]) succinctly explains that "[i]n order to demonstrate reckless disregard for the safety of others, a [claimant] must show that the defendant has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow and has done so with conscious indifference to the outcome" (quoting Muniz v City of Schenectady, 38 AD3d 989, 991 [2007] [internal quotation marks and citations omitted]; see Frezzell v City of New York, 24 NY3d 213, 217 [2014]).
There is no dispute that Troopers LaValley, Mendelsohn and D'Ambro, while in pursuit of Sisto, were drivers of authorized emergency vehicles involved in an emergency operation. While claimants seek to assign outsized and misplaced responsibility to Trooper D'Ambro specifically, no doubt by reason of Trooper D'Ambro's personal expressions at trial that certain conduct of his, including his departure from the Ray Brook barracks without first notifying a supervisor, violated State Police guidelines, it is the conduct of Trooper LaValley that is most critical in evaluating potential defendant culpability under Vehicle and Traffic Law § 1104.
Trooper LaValley was the lead State Police pursuit vehicle for the entire 81 second pursuit, closest to Sisto. Trooper Mendelsohn was in second pursuit position, trailing Trooper LaValley by a few to several car lengths. Trooper D'Ambro was only minimally involved in the actual pursuit of Sisto, well behind Troopers LaValley and Mendelsohn, and involved in the pursuit for less than a minute, covering a distance of approximately 3/4 mile.
In seeking to establish that State Police pursuit was in reckless disregard for the safety of others, claimants made the following points:
1. July 24, 2014 was the Thursday before the annual "Ironman" competition of the coming Sunday, the time of year generally agreed upon by the trial witnesses as the busiest time of year in the Lake Placid/Ray Brook/Saranac Lake region;
2. Claimants allege that the State Police pursuit of Sisto was unjustified, given that the involved troopers were unaware of Sisto's underlying offense which caused LPPD pursuit, describing that offense as "speeding through an alley" in Lake Placid.
This disingenuous and minimizing characterization ignores that Sisto's subsequent behavior was made known to the Ray Brook State Police barracks and reported to State Police Communications Specialist Francis Strack well before any State Police pursuit began, that "we've got someone on a high speed chase. . .[h]e is traveling on the sidewalk in Lake Placid trying to get out of town . . .[t]owards you guys" (Exhibit 7 at 13:40:00) and that "Lake Placid's PD's in pursuit of a black Ford F-150, vehicle's traveling at a high rate of speed coming out of Lake Placid toward ray [sic] Brook. Vehicle is taking evasive procedures, driving on the sidewalk trying to avoid police" and "[v]ehicle has been taking evasive actions driving down the sidewalk" (Exhibit 7 at 13:40:59).
All three troopers who pursued Sisto personally observed that he was driving excessively fast and dangerously before commencing their respective pursuits. Further, Trooper LaValley, specifically, prior to his pursuit of Sisto, had been informed by radio dispatch (Exhibit 7, at 13:40:59) that Sisto was speeding in Lake Placid, was being pursued by Lake Placid law enforcement, was driving to evade law enforcement by driving dangerously and erratically in Lake Placid, and was crossing into oncoming travel lanes and driving on the sidewalks of Main Street in Lake Placid in his effort to evade and flee law enforcement;
3. Route 86 was populated by moderate to heavy traffic during the State Police pursuit of Sisto;
4. Both Sisto and the pursuing State Police vehicles passed fellow westbound motorists during the pursuit on Route 86 West, sometimes crossing into the oncoming eastbound travel lane to do so;
5. Trooper LaValley's maximum speed reached approximately 96 MPH during the pursuit;
6. Sisto, when first passing Trooper LaValley on Route 86 West, was traveling at approximately 60 MPH and he increased his speed during the pursuit to approximately 96 MPH.
7. During the pursuit, Sisto struck the rear of the westbound traveling Hunt vehicle;
8. Trooper LaValley, during his pursuit, obtained the license plate number of the Sisto vehicle;
9. As all of the involved vehicles approached Ray Brook, the speed limit on Route 86 West reduced from 55 MPH to 45 MPH. The area entering Ray Brook is a small commercial district, populated by a number of businesses on both sides of Route 86, including a Ford dealership, a restaurant, a campground, an ice cream stand and the Curtis Lumber store; and,
10. The pursuit ended just past (west of) the Curtis Lumber store when Sisto crashed head-on into the vehicle driven by James Barney. The collision occurred in the eastbound travel lane of Route 86 as Sisto was attempting to pass several westbound vehicles on Route 86.
In evaluating State Police conduct and, specifically, Trooper LaValley's conduct, trial evidence established the following:
1. Prior to initiating pursuit, Trooper LaValley was aware of Sisto's dangerous and erratic behavior in attempting to evade and flee LPPD;
2. Trooper LaValley, before initiating pursuit, first tried to impede Sisto by entering Route 86 in front of Sisto with his marked State Police vehicle's lights and sirens activated, and traveled slowly, 20 to 30 MPH, in front of Sisto in an effort to cause Sisto to abort his evasive and dangerous driving (TT, pp 376-377);
3. Trooper LaValley's pursuit of Sisto lasted a total of 81 seconds and covered approximately 2 miles;
4. July 24, 2014 was a sunny and dry day;
5. The highest pursuit speeds were reached in a 55 MPH zone on flat, straight portions of Route 86;
6. Trooper LaValley expressed a plan to pursue Sisto to a point shortly past the Ray Brook State Police barracks, McKenzie Pond Road, located approximately 300 yards beyond the crash site, in order to determine the route Sisto would choose to take to Saranac Lake, a more densely populated area with more cars. Saranac Lake is located two to three miles west of Ray Brook and Trooper LaValley, at trial, spoke of his concern about Sisto traveling on to Saranac Lake.
McKenzie Pond Road is one of two routes off of Route 86 between Ray Brook and Saranac Lake, and by determining Sisto's route of travel, Trooper LaValley related an intention to alert Saranac Lake law enforcement, once the Trooper had observed Sisto's choice of travel, to enable Saranac Lake law enforcement to anticipate Sisto's arrival and intercept him (TT, pp 392-393);
7. Tellingly, Trooper LaValley, aware that Sisto was approaching the Ray Brook commercial area governed by a 45 MPH speed limit, slowed the speed of his pursuit of Sisto and the distance between his vehicle and Sisto's vehicle lengthened substantially, a development repeatedly referenced and confirmed in the trial record, by the trial testimony of Trooper LaValley's passenger, Trooper Conlon, by the trial and pre-trial testimony of Trooper Mendelsohn, immediately behind Trooper LaValley during the pursuit, and by the video evidence contained in Exhibit 30, which recorded the final pre-crash moments of Sisto and Trooper LaValley traveling west on Route 86.
Far from exhibiting conscious indifference to the outcome of his actions in reckless disregard for the safety of others, Trooper LaValley demonstrated conscious concern for the safety of others.
Beyond Trooper LaValley's credible trial testimony describing his awareness of and consideration for the dangers of his pursuit and describing his intention to pursue Sisto to a point that would enable him to forewarn law enforcement in Saranac Lake, Trooper LaValley expressly and manifestly demonstrated his conscious concern for the safety of others by slowing his pursuit speed of Sisto as the vehicles approached the small commercial area of Ray Brook.
Also, not to be overlooked, before any actual State Police pursuit of Sisto ever commenced, State Police took measures that sought to avoid the need to pursue Sisto at all by undertaking blocking maneuvers to stop or impede Sisto, first by Trooper Mendelsohn at the intersection of Old Military Road and Route 86, and then by Trooper LaValley as he pulled in front of Sisto on Route 86 West and drove slowly.
Claimants have failed to prove by a preponderance of the credible evidence that defendant acted with reckless disregard for the safety of others in violation of Vehicle and Traffic Law § 1104 (e).
Related to the Court's evaluation of Vehicle and Traffic Law § 1104 (e), the Court reviewed the testimony of claimants' trial expert, Edward Mamet. Mr. Mamet testified rather briefly, for a total of five minutes of a three-day trial, producing 21 pages of trial transcript out of a total of 714 pages.
Mr. Mamet's testimony was overwhelmingly theoretical and anecdotal. His testimony was unpersuasive. Moreover, a review of Mr. Mamet's testimony reveals that he expressed but one opinion specific to these two claims, that being the State Police pursuit of Sisto was a causative factor in the Sisto/Barney vehicle crash.
The importance of and the need to establish proximate cause, tying defendant's allegedly reckless conduct to injury, as a component of proving liability, requires the alleging party, in the first instance, to prove reckless conduct. As claimants have failed to demonstrate that the actions of Troopers LaValley, Mendelsohn and D'Ambro in pursuit of Sisto violated Vehicle and Traffic Law § 1104 (e), claimants have failed to prove that defendant acted recklessly. As such, the single specific opinion that Mr. Mamet did express at trial, regardless of its worth or persuasiveness (or lack of it), fails to provide any of its intended probative value in assessing defendant liability.
STATE POLICE GUIDELINES
Claimants also assert that the alleged failure of the involved troopers to adhere to certain State Police guidelines set forth in the "NYSP Field Manual - Article 30," entitled, "Patrol Operations" (Exhibit 6), constituted negligence proximately causing the Sisto vehicle to crash with the Barney vehicle.
It may well be unnecessary for the Court, having found that claimant failed to prove defendant acted with reckless disregard under Vehicle and Traffic Law § 1104 in its pursuit of Sisto, to even consider whether defendant's alleged violations of internal guidelines regarding supervisory involvement in pursuit situations constituted negligence that caused injury. Nevertheless, as claimants' allegations of deviations from State Police Article 30 guidelines were a significant focus at trial, the Court will address the issue.
The major thrust of claimants' argument on this point is that the actions of Troopers LaValley, Mendelsohn, and D'Ambro violated State Police guidelines by failing to notify a supervisor and/or to obtain supervisory authorization in response to an inter-agency request for assistance in a vehicle pursuit, and, accordingly, their deviations from the guidelines demonstrated negligence. Irrespective of whether the three troopers' initial actions (prior to their actual pursuit) were, or were not, engagements in vehicle pursuit in response to LPPD's inter-agency request for that assistance, claimants' argument is unavailing for several reasons.
First, although some State Police representatives at trial agreed that the involved troopers' initial and immediate actions after hearing radio communications by and between LPPD and State Police constituted vehicle pursuit assistance in response to an inter-agency request, several other trial witnesses disputed that characterization. Those witnesses described LPPD contact with Francis Strack as the provision of information to State Police, and the initial conduct of Troopers LaValley, Mendelsohn and D'Ambro as simply making themselves available to monitor evolving, uncertain and unfolding events, not the engagement of pursuit. In support of that characterization, the trial record revealed that each of the involved troopers first took a road position to gather more information, Trooper LaValley, initially at the Curtis Lumber parking lot and then on Route 86 facing west, Trooper Mendelsohn at the intersection of Route 86 and Old Military Road and Trooper D'Ambro stopped on Route 86 facing east.
Next, claimants' expert, Mr. Mamet, neither offered testimony nor expressed an expert opinion that the initial conduct of the involved troopers was the provision of vehicle pursuit in response to an inter-agency request for assistance to do so, the necessary prerequisite to the supervisory notice obligations claimants assert were violated.
Next, each of the involved troopers, prior to engaging in actual pursuit of Sisto, personally observed Sisto driving excessively fast, recklessly and dangerously. Also, Trooper LaValley, upon engaging in actual pursuit of Sisto, immediately notified the State Police barracks (see Exhibit 7 at 13:44:34).
Next, and significantly, claimants' assertions that supervisory involvement and oversight were necessary, and that the pursuing troopers' alleged deviations from State Police guidelines negligently prevented the supervisory participation necessary to assess the vehicle pursuit and to make judgments, are not factually supported and are belied by the trial record. The assertions overlook the fact that Sgt. Fenton was already involved in communications with the Ray Brook barracks about the ongoing situation before Trooper LaValley ever engaged in pursuit of Sisto, and that he was asking questions and getting information during the entire length of the State Police pursuit of Sisto.
Exhibit 7 makes clear that Sgt. Fenton is already in communications with Ray Brook barracks at 13:44:34, at a time when Sisto is still traveling on Old Military Road, not yet on Route 86, and prior to Trooper LaValley engaging in pursuit (see also TT, pp 676-677).
Sgt. Fenton remains in continuous contact with Ray Brook from the initiation of State Police pursuit until the Sisto/Barney crash. He (identified as "TL," for Tupper Lake) asks relevant and important questions. He asks about the availability of State Police personnel and he asks about the location of the LPPD and Sisto vehicles. When advised that, "3B12 Trooper LaValley now in pursuit of the vehicle," he asks, "Where are they?" When told Trooper LaValley is the lead pursuit vehicle, he immediately asks for a vehicle speed (see Exhibit 7 at 13:44:34).
In short, he is, during the entire length of State Police pursuit, performing his supervisory function, seeking to obtain important information to assess and make judgments about the ongoing pursuit. Sadly, the pursuit ends abruptly, after but 81 seconds.
Next, claimants' argument also presupposes that the alleged deviations from State Police guidelines, if proven, were negligent. No expert opinion was offered to establish that the alleged deviations from State Police guidelines expressed in Article 30 constituted negligence.
Finally, most critically, claimants failed to prove that the asserted deviations from State Police guidelines, even if established, were the proximate cause of the crash. No trial proof, expert or otherwise, was presented to establish that earlier supervisory notification and/or supervisory participation (beyond that of Sgt. Fenton's actual participation) would have resulted in a supervisor's refusal of permission to pursue Sisto or would have resulted in a supervisory order to terminate pursuit of Sisto, once initiated. There is no evidence in the trial record to establish the required causal link between negligence, if any, and outcome.
Claimants' expert, Mr. Mamet, never expressed an opinion that adherence to the relevant State Police guidelines allegedly violated would have resulted in the supervisory denial of permission to pursue Sisto, or that once engaged, a supervisory order to terminate pursuit of Sisto would have been given to the pursuing Troopers.
The failure to prove proximate cause of this very type is the precise reason liability was rejected in the matter of Wojtasik v State of New York (21 Misc 3d 1116[A], 2006 NY Slip Op 52646 [U][Ct Claims June 29, 2006], affd, 48 AD3d 1129 [4th Dept 2008]) (even as claimants cited the case in support of their position) which found no defendant liability by reason of claimant's failure to prove supervisory negligence proximately caused a crash between claimant and a vehicle being pursued by State Police.
In any event, beyond the foregoing, the Wojtasik case is factually distinguishable from the instant claims. In Wojtasik, a State Police supervisor, over the course of a 5 minute, 16 second pursuit, failed to respond to three separate requests for guidance from the pursuing trooper.
The trial court (Wojtasik, 2006 NY Slip Op 52646 at *4) aptly summarized that claim's pursuit circumstances:
"One thing, however, is clear. Based upon Sergeant Reese's testimony and the transcript of the radio transmissions, it is obvious that Sergeant Reese never provided any directive to Trooper Croucher in response to his repeated requests for vehicle contact action, nor did he attempt to obtain any relevant information from Trooper Croucher (as required by the New York State Police Field Manual) that would have allowed him to make a reasoned decision upon an appropriate course of conduct. As established by the transcripts of the radio transmissions, Sergeant Reese failed to make any inquiries whatsoever as required by the Manual. He failed to obtain pertinent (and very basic) information regarding this pursuit-such as the speed of the vehicles, traffic volume, road conditions and surrounding terrain, and weather conditions, which would have allowed him to make a reasoned decision as to whether to approve Trooper Croucher's request for vehicle contact action. Quite simply, Sergeant Reese left Trooper Croucher without any guidance or instruction as he pursued the Lamb vehicle the wrong way on northbound Route 81.
. . . .
The Court finds that when decisive action was required, Sergeant Reese did nothing: He failed to make any inquiries (as required by the Manual) in order to obtain very basic information on which he could base a decision on appropriate actions to take, and failed to provide any response whatsoever to the requests made by Trooper Croucher. Sergeant Reese was unwilling, or unable, to properly assess the situation, and therefore failed to make any reasoned or rational decision as to the appropriate course of action to be taken by Trooper Croucher. Based upon his failure to take any action whatsoever, the Court finds that his complete inaction constitutes negligence."
The instant facts are materially distinguishable from Wojtasik. Here, State Police pursuit lasted 81 seconds and a supervisory State Police sergeant was in constant contact during the entire pursuit, seeking significant and relevant information necessary to assess the ongoing pursuit.
The claimants have failed to prove by a preponderance of the credible evidence that the alleged failures of the State Police to adhere to the State Police Article 30 guidelines on July 24, 2014 either negligently or proximately caused the deaths of and injuries to the occupants of the Barney vehicle.
THE BEHAVIOR OF TREVOR SISTO
Given all of the foregoing, a specific discussion of Trevor Sisto is largely unnecessary. Be that as it may, the Court would be remiss did it fail to note the conduct of Sisto that was time and again set forth in the trial record.
The trial record contains repeated examples of Sisto's lawless, relevant behavior of July 24, 2014:
1. In the early morning hours of July 24, 2014, Sisto, 20 years old, illegally consumed two pints of vodka and smoked "[p]robably three or four grams" of "weed" (Exhibit 26, p 28);
2. As he began driving on the morning of July 24, 2014, Sisto was "intoxicated" (Exhibit 26, pp 12-13);
3. Fleeing Saranac Lake, after failing to stop when involved in a fender bender with another vehicle, Sisto smoked marijuana while driving;
4. While in Lake Placid, Sisto began the chain of events leading to the Ray Brook crash by striking a Lake Placid traffic vehicle and another parked vehicle, and then refusing to stop when commanded to do so by a Lake Placid traffic agent;
5. Sisto then drove recklessly and dangerously on Main Street in Lake Placid, speeding, passing vehicles by driving into the oncoming lane of traffic and driving on the sidewalk, grossly endangering the public;
6. After leaving downtown Lake Placid, Sisto, until the Ray Brook crash, drove at excessive speeds, drove dangerously by driving into oncoming travel lanes, passed countless vehicles in no passing zones, specifically endangered LPPD Chief Moore and Trooper D'Ambro by aiming his truck at their vehicles and struck the rear of the Hunt vehicle;
7. On at least two observable occasions prior to the crash, with no law enforcement in visible pursuit, and with no State Police engaged in any pursuit, Sisto drove at excessive speeds and drove dangerously by crossing into oncoming travel lanes, first when approaching Chief Moore at the intersection of Cummings and Wesvalley Roads and then when first sighted by Trooper Mendelsohn approaching the intersection of Old Military Road and Route 86;
8. At the "T" intersection of Old Military Road and Route 86, Sisto evaded Trooper Mendelsohn by driving behind Trooper Mendelsohn's sideways-placed State Police vehicle and running the stop sign at the intersection to turn left onto Route 86 West;
9. Sisto was "under the influence of marijuana" as he sped west on Route 86 approaching Ray Brook (Exhibit 26, p 87); and,
10. When asked at a deposition on May 15, 2017 what prevented him from stopping his vehicle, Sisto pointed to a culture in which he was raised and an ethos by which he lived, taught to obey no "laws or rules," and to run from "cops," lessons that he had apparently instilled in his four-year old son. Sisto testified,
"Q. What was preventing you from stopping your vehicle?
MR. ELBADAWI: Form.
THE WITNESS: Well, I mean, that question is kind of deeper than just the surface. It goes back to upbringing of where I grew up and came from. We are on the reservation. It's almost like a sovereign nation. There is no state police, village police. They have tribal police, that's it. They don't really go looking to arresting their own people, this and that.
We basically grow up in not living by laws or rules. I'm not Native American, but I did grow up on the rez. So cops come, run. I mean, just to give you an even better - - kind of better idea of that. My son is only four years old when I get arrested. And a couple of months before I get arrested I'm playing a video game and the cops are chasing me in a video game and he says, cholitos, run, which is the Mohawk word for officials or shirt wearers. So at four years old on the reservation you know, cops are coming, you run." (Exhibit 26, p 108, line 8 to p 109, line 5).
CONCLUSION
The Court takes no satisfaction in rendering this Decision. The result, though legally compelled by understandable and legitimate reasons, is, given the factual circumstances and the tragic consequences of July 24, 2014, an unfair outcome to the claimants and to their families.
Claim Nos. 126525 and 126802 are dismissed.
All motions not previously decided, and all objections not previously ruled upon, are hereby denied.
Let judgments be entered accordingly.
May 5, 2020
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims